When the courts let you down

Justice Markandey Katju is a former judge of the Supreme Court of India. Long before he retired in 2011, he had been known for both his outspoken views and his brilliant, scholarly lectures and speeches, especially on Indian history, Urdu literature and shared Hindu-Muslim civilizational heritage.

After retiring from the highest court in the land, Justice Katju seems to have become even more candid, often taking a brave and at times controversial stand on issues of national importance.

Besides writing for a number of publications, he often shares his views on his Facebook page that often go viral. Not surprisingly, the former judge, a Kashmiri Pandit by birth incidentally, has on many occasions found himself in a spot. In the process, however, he has earned himself a legion of admirers as well as detractors.

In 2017, Katju had to tender a formal apology to the Supreme Court after blasting honourable judges of the top court over Kerala’s Soumya rape case. An SC bench led by Justice Ranjan Gogoi, later the chief justice of India, received the formal apology.

It is the same chief justice who delivered the bizarre Ayodhya judgement, handing over the Babri Masjid site to the folks who had demolished it in the first place in 1992, adding insult to Muslims’ injury and making a mockery of justice.

Justice Gogoi, now retired, will also be remembered for a number of such ‘judgments’ and rulings, including his repeated refusals to intervene in times of grave national crises. He repeatedly declined to take up the stealing of Jammu and Kashmir’s autonomy by the Modi government and unprecedented imprisonment of its leadership and its people.

Three former chief ministers of Jammu and Kashmir, including numerous other Kashmiri politicians, have just completed six months in detention on the Supreme Court watch. The internet remains suspended in the fractured state and the once vibrant media in Kashmir has been driven out of business.

No wonder Katju is livid at the former chief justice of India, calling him a “blot on the judiciary” and skewering him for practically prostrating before the BJP government and handing over “the entire Supreme Court to the political executive, giving up its solemn duty of protecting the rights of the people.”

In his latest piece in the ‘Week’ magazine, Katju does not spare fellow SC judges either. “When Gogoi did all this, not a single voice of open dissent was heard from any of the Supreme Court justices. When the shameful Ayodhya verdict was delivered by the Supreme Court in November 2019, it was unanimous. Gogoi was a blot on the judiciary, but on the judicial side, all judges are equals, and the chief justice is not their superior. Why then did the other justices surrender their consciences to Gogoi?”

Katju is most critical of the now infamous Ayodhya judgement by the top court, delivered by Gogoi days before he retired: “There were five Supreme Court justices on the Ayodhya bench. It was of course expected of Gogoi to have done as he was told by the Union government. But how could the other four justices have agreed to such an outrageous, scandalous and opprobrious verdict? Where were the inner voices and scruples of these four justices? Or had the justices handed them over to Gogoi?”

The former SC judge goes on to list a number of cases in which Gogoi and his fellow justices repeatedly failed their essential duties as members of the highest court in the country and their responsibility to protect the constitution and the fundamental rights of citizens.

Writing about the appointment of Justice Akil Kureshi and how the BJP government manipulated the SC to prevent the Muslim judge from becoming the chief justice of the Madhya Pradesh High Court, Katju asks: “Why did the four members of the Supreme Court Collegium go along with Gogoi and succumb before the BJP government, which did not want a Muslim chief justice in the larger Madhya Pradesh High Court, and instead sent him to the much smaller Tripura High Court? Gogoi was of course expected to toe the government’s line, but what about the other four justices in the Collegium? Where were their consciences?”

On another occasion, Katju recalls, rejecting the bail plea of journalist and columnist Abhijit Iyer Mitra, the then chief justice Gogoi said: “The safest place for you is jail.” This when bail, not jail, is the normal rule followed by Indian courts and courts everywhere unless the accused is likely to abscond or tamper with the evidence or is accused of a heinous crime. Mitra had only tweeted a satirical remark about the Konark temple, for which he had soon apologised.

Well, Mitra is small fry compared to former home minister and finance minister P Chidambaram – and we all know how he suffered at the hands of an incredibly vicious and vindictive regime. He repeatedly approached various courts including the SC for bail and it was repeatedly denied him. The senior Congress leader was picked up and paraded like a common criminal in a petty and clearly cooked up INX Media case.

Chidambaram was released after spending 105 days in the notorious Tihar Jail with hardened criminals. If this can happen to a high-profile politician and influential former central minister, who also happens to be a top SC lawyer, imagine the predicament of the less fortunate under this order.

The former home minister may have paid dearly for his eloquent and incisive speeches in parliament on the question of Kashmir and other national issues. Others suspect that Chidambaram had been penalised for sending Home Minister Amit Shah, the then Gujarat home minister, to prison in the fake encounter case of Sohrabuddin Sheikh and later rape-and-murder of his wife.

Returning to the issue on hand, Justice Katju deserves a big round of applause for his immense courage and candour. He has indeed articulated the sentiments and feelings of silent multitudes of this country who have been most troubled and dismayed by the silence and indifference of the judiciary to the host of national crises facing the country.

There is no doubt that India’s top judiciary has let down its democracy and its constitutional responsibility to protect the rights of the people. Gogoi presided over the total rout and surrender of the top court before a power-drunk, reckless regime.

No wonder judgment after judgment that emanated from the top court under him failed to meet the basic requirements of fair and equitable justice and pandered to the whims and ideological orientation of the Hindutva government.

More alarming is the fact that the legacy of Justice Gogoi is likely to continue under his successor Justice Bobde, who sat in judgement over Ayodhya with Justice Gogoi, and long into the future.

Look at the SC response to the pressing issue of the brazenly discriminatory Citizenship Amendment Act and other related questions again. The court has once again chosen a predictable route, giving the BJP government at the centre enough time and luxury to come up with excuses in response to the desperate pleas against the black law.

This at a time when tens of thousands of women, young and old, have been clamouring for justice at Delhi’s Shaheen Bagh for nearly two months, braving bitter cold and bullets of BJP supporters, not to mention thousands of protests that are being held daily across the country.

Thanks to the years of Hindutva infiltration of various state institutions, including the judiciary, it seems India’s courts, once known for their independence, have gone the way of its once free media. Many of the recent appointees are favoured by this government, if not directly appointed.

No wonder nothing seems to move the honourable judges or those other uncaring, self-important men sitting in high castles in whose hands have been placed the reins of this billion-strong democracy.

In a democracy, though, when governments abuse their power, people look to the judiciary for help. Where do you turn for help when the courts let you down?

The writer is an independent writer and former editor.

Email: Aijaz.syed@hotmail.com

Twitter: @AijazZaka